Law Commons^™

The World’S Laboratory: China’S Patent Boom, It Standards And The Implications For The Global Knowledge, Christopher Mcelwain, Dennis Fernandez

Christopher McElwain

Just as China’s factories disrupted the economics of IT hardware, its research labs have the potential to disrupt the economics of the technology itself. In 2014, China’s patent office received nearly 2.4 million patent applications, 93% from domestic applicants. China has also climbed to third place in terms of international applications, with over 21,000 WIPO PCT applications. Meanwhile, China has taken an assertive role in setting technology standards, both at the national and international levels. In the past, this has included developing and promoting alternatives to important IT standards as a means of challenging perceived monopolies by certain (foreign-dominated) technologies. …

Managing Cyberthreat, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Cyber security is an important strategic and governance issue. However, because most corporate CEOs and directors have no formal engineering or information technology training, it is understandable that their lack of actual cybersecurity knowledge is problematic. Particularly among smaller companies having limited resources, knowledge regarding what their enterprise should actually be doing about cybersecurity can’t be all that good. My goal in this article is to explore the unusually complex subject of cybersecurity in a highly readable manner. First, an examination of recent threats is provided. Next, governmental policy initiatives are discussed. Third, some basic tools that can be used …

Toward A State-Centric Cyber Peace? Analyzing The Role Of National Cybersecurity Strategies In Enhancing Global Cybersecurity, Scott J. Shackelford, Andraz Kastelic

Scott Shackelford

There is a growing consensus that nations bear increasing responsibility for enhancing cybersecurity. A related recent trend has been the adoption of long-term strategic plans to help deter, protect, and defend against cyber threats. These national cybersecurity strategies outline a nation’s core values and goals in the realm of cybersecurity law and policy, from mitigating cybercrime and espionage to preparing for cyber warfare. This Article assesses the notion that nations bear the primary responsibility for managing cyber attacks and mitigating cybercrime by analyzing thirty-four national cybersecurity strategies as a vehicle to discover governance trends that could give rise to customary …

The Google Art Project: An Analysis From A Legal And Social Perspective On Copyright Implications, Katrina Wu

Katrina Wu

The Google Art Project is an ambitious attempt by Google to curate worldwide artwork online in the highest resolution possible. Google accomplishes this by partnering with museums where museums provide access to art collections and Google provides the technology to capture high quality images. Under this existing model, Google places the burden of copyright clearances on museums and removes images from online if requested by copyright owners. An endeavor like the Google Art Project is not unprecedented however, when Google attempted to put the world’s books online under the Google Books Project, scanning millions of titles and offering snippets for …

Internet Protocol Television And The Challenge Of “Mission Critical” Bits., Rob Frieden

Rob Frieden

The Internet increasingly provides an alternative distribution medium for video and other types of high value, bandwidth intensive content. Many consumers have become “technology agnostic” about what kind of wireline or wireless medium provides service. However, they expect carriers to offer access anytime, anywhere, via any device and in any format. These early adopters of new technologies and alternatives to “legacy” media have no patience with the concept of “appointment television” that limits access to a specific time, on a single channel and in only one presentation format. This paper assesses whether and how Internet Service Providers (“ISPs”) can offer …

The Infringement Continuum, Bernard H. Chao

Bernard H Chao

For many years, patent law has struggled with the issue of permissible claim scope. A patent’s specification and its claims often suffer from a surprising disconnect. The specification generally describes an invention in terms of one or more specific implementations; suggesting a relatively narrow invention. But claims are drafted far more broadly. They frequently encompass unforeseen variations and even cover after arising technology.

Although there are numerous existing doctrines that try to prevent claims from straying too far from their specification, these doctrines offer binary outcomes ill-suited for patent law. Under these doctrines, as a claim encompasses subject matter further …

Virtual Currencies: Bitcoin & What Now After Liberty Reserve, Silk Road, And Mt. Gox?, Lawrence J. Trautman

Lawrence J. Trautman Sr.

During 2013, the U.S. Treasury Department evoked the first use of the 2001 Patriot Act to exclude virtual currency provider Liberty Reserve from the U.S. financial system. This article will discuss: the regulation of virtual currencies; cybercrimes and payment systems; darknets, Tor and the “deep web;” Bitcoin; Liberty Reserve; Silk Road and Mt. Gox. Virtual currencies have quickly become a reality, gaining significant traction in a very short period of time, and are evolving rapidly. Virtual currencies present particularly difficult law enforcement challenges because of their: ability to transcend national borders in the fraction of a second; unique jurisdictional issues; …

Lost In The Cloud: Information Flows And The Implications Of Cloud Computing For Trade Secret Protection, Sharon K. Sandeen

Sharon K. Sandeen

As has been noted elsewhere, the advent of digital technology and the Internet has greatly increased the risk that a company’s trade secrets will be lost through the inadvertent or intentional distribution of such secrets. The advent of cloud computing adds another dimension to this risk by placing actual or potential trade secrets in the hands of a third-party: the cloud computing service. This article explores the legal and practical implications of cloud computing as they relate to trade secret protection.

While there are many types of cloud computing services, this article focuses on cloud-based services that offer businesses the …

Lost In The Cloud: Information Flows And The Implications Of Cloud Computing For Trade Secret Protection, Sharon K. Sandeen

Sharon K. Sandeen

As has been noted elsewhere, the advent of digital technology and the Internet has greatly increased the risk that a company’s trade secrets will be lost through the inadvertent or intentional distribution of such secrets. The advent of cloud computing adds another dimension to this risk by placing actual or potential trade secrets in the hands of a third-party: the cloud computing service. This article explores the legal and practical implications of cloud computing as they relate to trade secret protection.

While there are many types of cloud computing services, this article focuses on cloud-based services that offer businesses the …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

An Empirical Study: A Socio-Legal Approach To Gauging Attitudes To Intellectual Property Rights, Faris K. Nesheiwat, Mike Adcock

Ferris K Nesheiwat

This article seeks to provide a socio-legal framework for the examination of the attitude of a section of the Jordanian public towards intellectual property rights (IPRs), using copyright protected software as an example; it provides an overview of perceptions of IPRs within an Arabic and predominantly Muslim society, and examines how such perceptions impact attitudes towards abiding with, and enforcement of, IPRs. Through its analytical value and empirical research, this paper fills a void in the availability of reliable empirical data in Jordan as part of the analysis to gauge the impact of intellectual property (IP) laws. A review of …

E-Commerce And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What are the major risks perceived by those engaged in e-commerce and electronic payment systems? What development risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise? This article utilizes the relevant annual report disclosures from eBay (parent of PayPal), along with other eBay and PayPal documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from eBay’s regulatory filings. My additions include weaving these materials into a logical presentation and providing supplemental sources for those who desire a deeper look (usually in …

Game Over For First Sale, Stephen J. Mcintyre

Stephen J McIntyre

Video game companies have long considered secondhand game retailers a threat to their bottom lines. With the next generation of gaming consoles on the horizon, some companies are experimenting with technological tools to discourage and even prevent gamers from buying and selling used games. Most significantly, a recent patent application describes a system for suppressing secondhand sales by permanently identifying game discs with a single video game console. This technology flies in the face of copyright law’s “first sale” doctrine, which gives lawful purchasers the right to sell, lease, and lend DVDs, CDs, and other media. This Article answers a …

Comparative Studies On Isps' Secondary Copyright Liability In China And The Us, Hong Lou

Hong Lou

In China, the amount of copyright infringement disputes cases related to ISPs is rapid increasing, and current legislation seems to be insufficient to regulate these problems. Moreover, there is a chaos in different courts around China using different approaches and standards on search engines' secondary liability.Therefore, how to improved Chinese copyright legislation and unite relevant judgments with reasonable approaches has become an urgent task. The purpose of this essay is to compare legislation and legal practice in China and the US, to point out the tendency of ISPs' secondary copyright liability in these two countries, and to make useful suggestions …

What Should Be Patentable? A Proposal For Determining The Existence Of Statutory Subject Matter Under 35 U.S.C. Sec. 101, Andrew Beckerman Rodau

Andrew Beckerman Rodau

The question of what type of inventions should be protectable under patent law is a controversial issue that has received significant attention. Recent Supreme Court decisions reject a bright line test in favor of a more-opened ended approach to determining patent eligibility. Unfortunately, this provides limited guidance to lower courts and consequently the issue remains unsettled. Most inventions fit within the statutory requirements defining patent-eligible inventions. This article will examine the scope of patent-eligible subject matter defined by patent law section 101. It will look at judicial interpretation of the statute including exceptions judicially engrafted onto the statute by the …

Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower

Richard Cameron Gower

Despite some difficulties, state tort law can be argued to create a unique exception to patent law. Specifically, the prevented rescue doctrine suggests that charities and others can circumvent patents on certain critical medications when such actions are necessary to save individuals from death or serious harm. Although this Article finds that the prevented rescue tort doctrines is preempted by federal patent law, all hope is not lost. A federal substantive due process claim may be brought that uses the common law to demonstrate a fundamental right that has long been protected by our Nation’s legal traditions. Moreover, this Article …

Policy Tailors And The Rookie Regulator, Sarah Tran

Sarah Tran

Commentators have long lamented the lack of policy tailoring in the patent system. But unlike other administrative agencies, who regularly tailor regulatory policies to the needs of specific industries, the U.S. Patent and Trademark Office (“PTO”) was widely believed to lack the authority and institutional competence for such policymaking. This Article provides the first comprehensive analysis of recent legislative reforms to the PTO’s policymaking authority. It shows the reforms empower the PTO to have a larger say in patent policy than ever before. The big question is thus: to what extent is it good policy for a rookie regulator to …

Patent Reversion: An Employee-Inventor's Second Bite At The Apple, Richard Kamprath

Richard Kamprath

In an attempt to more fully compensate employee-inventors without harming the return on investment of employers, a patent reversion is proposed in which the rights to the patent revert to joint ownership between the original inventor and the current owner. In Section I, the background of the relationship between employer and employee-inventor will be discussed in terms of patent rights. This section will outline the problems inherent in the pre-assignment status quo of these rights from employees to employers. Section II will begin with Part A, which is a review of previously proposed solutions to the under-compensation of employee-inventors. The …

Threats Escalate: Corporate Information Technology Governance Under Fire, Lawrence J. Trautman

Lawrence J. Trautman Sr.

In a previous publication The Board’s Responsibility for Information Technology Governance, (with Kara Altenbaumer-Price) we examined: The IT Governance Institute’s Executive Summary and Framework for Control Objectives for Information and Related Technology 4.1 (COBIT®); reviewed the Weill and Ross Corporate and Key Asset Governance Framework; and observed “that in a survey of audit executives and board members, 58 percent believed that their corporate employees had little to no understanding of how to assess risk.” We further described the new SEC rules on risk management; Congressional action on cyber security; legal basis for director’s duties and responsibilities relative to IT governance; …

Google Books Rejected: Taking The Orphans To The Digital Library Of Alexandria, Giancarlo Francesco Frosio

Giancarlo Francesco Frosio

The idea of the Library of Alexandria has powerfully expanded over the centuries, embodying the dream of universal wisdom and knowledge centralized in one single place. Digitization projects, such as the Google books project, are reviving the hope that this dream may come true. Moreover, the ubiquity of the networked environment promises to open access to this aiber-library to everybody with an Internet connection. Today the entire collection of human knowledge may be only one click away. Whether the dream of the Library ofAlexandria will be achieved by the Google books project is highly debated. Recently, a court decision concluded …

Licensing As Digital Rights Management, From The Advent Of The Web To The Ipad, Reuven Ashtar

Reuven Ashtar

This Article deals with the Digital Millennium Copyright Act’s anti-circumvention provision, Section 1201, and its relationship to licensing. It argues that not all digital locks and contractual notices qualify for legal protection under Section 1201, and attributes the courts’ indiscriminate protection of all Digital Rights Management (DRM) measures to the law’s incoherent formulation. The Article proposes a pair of filters that would enable courts to distinguish between those DRM measures that qualify for protection under Section 1201, and those that do not. The filters are shown to align with legislative intent and copyright precedent, as well as the approaches recently …

Biometrics, Retinal Scanning, And The Right To Privacy In The 21st Century, Stephen Hoffman

Stephen P. Hoffman

Biometric identification techniques such as retinal scanning and fingerprinting have now become commonplace, but near-future improvements on these methods present troubling issues for personal privacy. For example, retinal scanning can be used to diagnose certain medical conditions, even ones for which the patient has no symptoms or has any other way of detecting the problem. If a health insurance company scans the retinas of potential clients before they purchase coverage, they could be charged higher premiums for conditions that do not present any issues. Not only is this unfair, but the ease with which these scans can be conducted—including scanning …

Of Mice And Men: Why An Anticommons Has Not Emerged In The Biotechnological Realm, Chester J. Shiu

Chester J Shiu

In 1998 Michael Heller and Rebecca Eisenberg posited that excessive patenting of fundamental biomedical innovations might create a “tragedy of the anticommons.” A decade later, their dire predictions have not come to pass, an outcome which calls much of the legal scholarship on the topic into question. This Article proposes that legal commentators’ theoretical arguments have largely ignored two very important factors. First, the National Institutes of Health (NIH)—the single most important actor in the biomedical research industry—has played an active role in keeping the biomedical research domain open. In particular, regardless of what the current patent regime may theoretically …